THE culture of cover-up in the Catholic Church when it comes to pedophile priests doesn't surprise anyone any more, says Geoff Wilkinson.

Moving offenders on to a different parish to avoid public scandal, and usually avoiding punishment in the process, went on for years and has been well documented.

But when the law appears to aid and abet the hiding of the truth, the scales of justice become even more seriously tilted in the wrong direction.

The latest priest to belatedly fall foul of the law was Paul David Ryan, who assaulted two altar boys when he was parish priest at Penshurst in 1989-90.

Warrnambool magistrate Michael Stone sentenced Ryan to 18 months'jail, with a minimum of 12 months to serve, after being told he was a truly remorseful man with no prior convictions or subsequent offences.

While that assertion by defence barrister Julie Sutherland was accurate in the literal and legal sense, it ignored facts most people would consider relevant to the sentencing process.

And if Mr Stone was unaware of the facts not raised in court, he may well have dealt with Ryan in a vacuum when it came to deciding an appropriate sentence.

What the magistrate was not told was that Ryan had abused other teenage boys and had been exposed as a pedophile long before he went to Penshurst.

Nor was the magistrate told that after resigning as the parish priest at Penshurst, Ryan was moved to the Ararat parish and assaulted another boy who later committed suicide.

The problem is that neither the previous assaults nor the later one resulted in criminal charges or convictions.

The earlier incidents, in the US, were dealt with as civil matters and resulted in apologies and compensation payouts from the Catholic Church to at least two victims.

The abuse at Ararat was never prosecuted because the victim later died a lonely and tragic death, hanged in an Aspendale bathing box.

In our legal system, only prior convictions can be put to a judge or magistrate during pre-sentence submissions.

Prosecutors raise other matters that could discredit an offender only if defence counsel make the offender's supposedly good character an issue.

It might be debatable when that point is reached, but it could be argued that it was reached in Ryan's case.

M S Sutherland, putting a strong submission for a suspended sentence for her client, told the magistrate Ryan was deeply ashamed by his betrayal of trust.

"He is able to come here and say: 'I am a changed human being'," Ms Sutherland said.

She told the court that before his arrest this year, Ryan had been a mental health worker helping indigenous communities in far north Queensland. After his arrest, he taught English in Cairns.

An observer with no better knowledge of Ryan's history might have thought the priest's transgressions at Penshurst were a lapse that had not happened before or since.

Sentencing expert Prof Arie Freiberg says the suggestion that relevant similar behaviour should be admissible during the sentencing process is "an interesting argument".

Prof Freiberg, chairman of the state's Sentencing Advisory Council,says the relevant section of the Sentencing Act allows only "previous findings of guilt or convictions" to be raised.

The co-author of Australia's leading text on the law of sentencing confirms that previous civil action, or unproved allegations of criminality, cannot be used against an offender.

"It comes down to the definition of offending. You're effectively finding him guilty of those offences in a later criminal court when he hasn't been charged with them or found guilty," Prof. Freiberg says.

"That's the legal dilemma. There's a danger of punishing people for things of which they haven't been found guilty."

But in the Ryan case, the behaviour hidden from the court was more than allegations of criminality.

It was identical behaviour, there was no doubt it happened, and it was conceded by the church in formal, written apologies.

Yet Ryan was dealt with as a man who had not offended before or since the matters before the court.

The truth was that he had offended in identical fashion before and since.

Prof Freiberg says a court can consider the general reputation of the offender, and any significant contributions to the community, in determining the offender's character.

"But both of those usually go to the positive, rather than the negative," he said.

In other words, evidence of good character can be used by the defence, but the reverse does not apply to the prosecution. That will sound like one-way justice to most people.

P ROF Freiberg says the law is "pretty much constrained by the idea that if you're going to do something which aggravates the sentence,it's usually confined to previously charged offences where there's beena finding of guilt.

"I think that's defensible. It doesn't tell you the whole story, but as we know you never necessarily get the whole story in court because of the rules of evidence, which apply at the sentencing stage as well."

One wonders what the Lady of Justice often found outside our courts-- the symbol of fair and equal administration of the law, without corruption, avarice, prejudice or favour -- would make of that observation.

Perhaps that's why she usually wears a blindfold.

wilkinsong@heraldsun.com.au